Last edited: February 14, 2005

 

STATE OF MINNESOTA COURT            DISTRICT
COUNTY OF HENNEPIN                         FOURTH JUDICIAL DISTRICT
                                                                    Civ. No. 01-0004


John Doe, Mark Roe, Kim Nyhus,
Phil Duran, Jane Doe, Erin Krebs, and
Jared Frandson, and the Minnesota
Lavender Bar Association, on behalf
of its members,

Plaintiffs,

v.                                                                 COMPLAINT

Jesse Ventura, Governor of the
State of Minnesota, Mike Hatch, Attorney
General of the State of Minnesota, and the
State of Minnesota,

Defendants.

For their Complaint against the defendants above-named, plaintiffs state and allege as follows:

1. This is a declaratory judgment action wherein the plaintiffs seek a declaration that Minn. Stat. 609.293, which criminalizes any act of private, consensual, noncommercial oral sex and other acts of sodomy by consenting adults, without regard to sexual orientation, including married couples, is unconstitutional because it violates the right of privacy guaranteed by the Minnesota Constitution. Plaintiffs do not rely in this suit on any rights guaranteed by the United States Constitution, and do not challenge 609.293, as applied to commercial or public acts of sodomy. Plaintiffs likewise raise no challenge to other Minnesota statutes criminalizing forced or non-consensual sexual activity or sexual activity involving minors, which are separate and distinct from 609.293.

2. Plaintiff John Doe is a quadriplegic, heterosexual married man who works in management for a large corporation and lives in Minneapolis. Mr .Doe has engaged and will continue to engage with his spouse in private, noncommercial, consensual acts prohibited by 609.293. Mr. Doe, who brings this action on behalf of himself and all others similarly situated, fears arrest and prosecution under 609.293 and other adverse consequences. His physical condition precludes him and his wife from engaging together in intimate sexual acts that are not proscribed by 609.293.

3. Plaintiff Mark Roe, a heterosexual married man who lives in Minneapolis and works as a licensed elementary school teacher, has engaged and will continue to engage with his spouse in private, noncommercial, consensual acts prohibited by 609.293. Mr. Roe, who brings this action on behalf of himself and all others similarly situated, fears arrest and prosecution under 609.293 and other adverse consequences, including loss of his teaching license, which carries a requirement of legal conduct, or other discipline.

4. Plaintiff Kim Nyhus, a divorced gay man who has the right of visitation with his children, is a former Methodist minister who lives in Minneapolis and is currently working toward ordination by the Episcopal church. He has engaged and will continue to engage with his life partner in private, noncommercial, consensual acts prohibited by 609.293. Mr. Nyhus, who brings this action on behalf of himself and all others similarly situated, fears arrest and prosecution under 609.293 and other adverse consequences, including interference with visitation.

5. Plaintiff Phil Duran is a gay law school graduate who will sit for the Minnesota bar exam in the summer of 2000 and resides in an apartment in Minneapolis pursuant to a lease that prohibits illegal activity. He has engaged and will continue to engage on his leased premises in private, noncommercial, consensual acts prohibited by 609.293. Mr. Duran, who brings this action on behalf of himself and all others similarly situated, fears arrest and prosecution under 609.293 and other adverse consequences, including the inability to secure his license as an attorney, which requires lawful conduct, or the subsequent loss thereof, and eviction or nonrenewal of his lease.

6. Jane Doe, a lesbian lawyer, works in Hennepin County and resides in Dakota County in a town home pursuant to a lease that requires lawful conduct. She has engaged and will continue to engage in her town home in private, noncommercial, consensual acts prohibited by 609.293. Ms. Doe, who brings this action on behalf of herself and all others similarly situated, fears arrest and prosecution under 609.293 and other adverse consequences, including the loss of her license as an attorney, which requires lawful conduct, and eviction or nonrenewal from her town home.

7. Plaintiff Minnesota Lavender Bar Association ("MLBA "), a Minnesota non-profit corporation, is an association of and for gay, lesbian, bisexual and transgender ("GLBT") law students who plan to seek license practice law in Minnesota and lawyers who are currently licensed in good standing in Minnesota. MLBA brings this action on behalf of its members, who fear arrest and prosecution under 609.293 and other adverse consequences, including the inability to secure or the loss of license to practice law, which requires legal conduct.

8. Plaintiffs are aware of the recent enforcement of 609.293. against consenting adults engaging in private, noncommercial activity. Plaintiffs are also aware that recent legislative attempts to repeal 609.293, as applied to private, noncommercial acts by consenting adults, have been rejected, thereby leaving 609.293 on the books for enforcement.

9. Defendant Jesse Ventura is sued in his official capacity as the Governor of the State of Minnesota who shares responsibility for ensuring that the laws of Minnesota, including 609.293, are faithfully executed.

10. Defendant Mike Hatch is sued in his official capacity as the Attorney General for the State of Minnesota who is charged with enforcing the laws of the State of Minnesota, including 609.293.

11. Venue is appropriate in this Court because plaintiffs' rights to privacy have been violated in Hennepin County.

12. The class, which consists of all adults in Minnesota who have engaged within the limitations period and continue to engage in private, noncommercial, consensual acts prohibited by 609.293, is so numerous that joinder is impracticable.

13. Plaintiffs' claims are typical and not antagonistic to those sought to be asserted on behalf of the class. Plaintiffs' claims and the class claims also present common questions of law or fact, e.g. is 609.293 constitutional when applied to private, noncommercial, consensual acts of sodomy.

14. Defendants are responsible for acting on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole. Prosecution of separate actions by class members would also create a risk of inconsistent decisions, thereby creating inconsistent standards for compliance by defendants, and as a practical matter would be dispositive of the interests of class members who are not parties.

15. Plaintiffs are adequate class representatives and they have engaged attorneys with experience in litigating class action lawsuits and lawsuits involving constitutional rights.


COUNT 1 - VIOLATION OF THE RIGHT TO PRIVACY GUARANTEED BY THE MINNESOTA CONSTITUTION

16. Plaintiffs incorporate the allegations in Paragraphs 1-15 above as if expressly set forth herein.

17. Minn. Stat. 609.293, as applied to private, consensual, noncommercial oral sex and other acts of sodomy by consenting adults, without regard to sexual orientation, including heterosexual married couples, violates the right of privacy guaranteed by the Minnesota Constitution.

WHEREFORE, plaintiffs respectfully request that judgment be entered as follows:

1. Declaring that Minn. Stat. 609.293, as applied to private, consensual, noncommercial oral sex and other acts of sodomy by consenting adults violates the right of privacy guaranteed by the Minnesota Constitution, and is therefore void as unconstitutional;

2. Permanently enjoining defendants and their agents and subordinates, including county attorneys, from enforcing Minn. Stat. 609.293 against consenting adults who engage in private, consensual, noncommercial oral sex and other acts of sodomy;

3. For plaintiffs' reasonable costs and attorneys' fees herein; and

4. For such other and further relief as the Court deems just and equitable.


Dated: June 22, 2000                                           Timothy E. Branson (#174713)
                                                                            Michael R. Drysdale (#257606)
                                                                            Kevin J. Braley (#290373)
                                                                            James J. McConnel1 (#269426)
                                                                            Pillsbury Center South
                                                                            220 South Sixth Street
                                                                            Minneapolis, Minnesota 55402
                                                                            Telephone: 612-340-2600

                                                                            Teresa Nelson (#269736)
                                                                            Minnesota Civil Liberties Union
                                                                            1021 West Broadway
                                                                            Minneapolis, Minnesota 55411
                                                                            Telephone: (612) 522-3894

                                                                            Michael Adams
                                                                            American Civil Liberties Union
                                                                            125 Broad Street
                                                                           
New York, New York 10004-2400
                                                                            Telephone: (212) 549-2623

                                                                            Attorneys for Plaintiffs

 

ACKNOWLEDGMENT

The undersigned hereby acknowledges that sanctions may be imposed under Minn. Stat. 549.211.

Timothy E. Branson


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